Considering the $3 trillion behemoth that is the American healthcare system, what the Medicare program paid for telehealth last year is microscopic: $28.7 million. However, that’s up 28 percent from what Medicare paid out in 2015. Total telehealth claims also rose by a third last year, to nearly 500,000 in total.

Given major providers such as the Mayo Clinic have already established a significant telemedicine network for emergency medicine, linking nearly 50 hospitals in nine states, it is likely that in the near-term more patients will receive some significant part of their healthcare services electronically, and in ways that will become ever swifter and convenient. However, as such services expand and evolve, so will legal risks and concerns.

“In some respects, the standard of care is changing in terms of adding new issues to be confronted, particularly given the speed at which care is being delivered,” said David E. Richman, a partner in the New York law firm of Rivkin Radler and an expert in medical malpractice.

The notion of e-health as being confined purely to telemedicine — where most encounters still have to be performed within a clinical setting — is also being upended. One startup firm, Colorado-based CirrusMD, is taking e-health services to a new level. It is capitalizing on the nearly ubiquitous use of texting, allowing individuals to communicate with physicians about their medical conditions using a HIPAA-compliant app on their smartphone. They can also talk with the doctors by phone or through video conferencing.

One startup firm, Colorado-based CirrusMD, is taking e-health services to a new level. It is capitalizing on the nearly ubiquitous use of texting, allowing individuals to communicate with physicians about their medical conditions using a HIPAA-compliant app on their smartphone. They can also talk with the doctors by phone or through video conferencing.

According to Blake McKinney, M.D., a California emergency room physician and one of CirrusMD’s founders, about 85 percent of these patient-physician interactions through its platform is via text. The remainder is primarily by phone, mostly to clarify information. There are only a small handful of video interactions.

McKinney noted that texting provides an advantage for both patients and physicians. Patients don’t need to wait to communicate with a doctor; they can open the app and have nearly instant access. Conversely, doctors don’t need to be in any sort of formal setting to consult with patients, making them more willing to be flexible about the hours they are available. Moreover, doctors using the platform can comfortably interact with as many as four patients at a time, McKinney said, creating the kind of workforce efficiencies rarely seen in healthcare.

CirrusMD markets its platform primarily to managed care health plans and typically contracts with local emergency physician medical groups to answer the patient texts. One unnamed health plan said that 13 percent of encounters on the platform resulted in likely ER visits that were avoided, 27 percent resulted in likely urgent care visits that were avoided and 32 percent resulted in likely office visits that no longer needed to be arranged.

CirrusMD has retained some fairly significant clients in recent months, including Kaiser Permanente in Colorado, which has rebranded the platform “KP Chat With a Doctor.” Its platform is active 14 hours a day and includes a variety of Kaiser Permanente medical specialists beyond emergency physicians.

Ari Melmed, M.D., a Kaiser Permanente emergency physician, noted at a recent presentation of the American Telemedicine Association annual conference that the organization decided to keep the physician network in-house so all patient encounters would be bolstered by instant access to their electronic medical records. Melmed said the patient response has been highly positive and the fact doctors can consult from home is “a real crowd pleaser.” The use of the platform has grown significantly since it was introduced last spring, although about 18 percent of encounters require a subsequent in-person visit. Patients have included an 89-year-old woman who texted in all capital letters and used the term “over and out” to conclude her encounter. Pediatric consults have also proven extremely popular. Melmed also noted that the anonymity provided by the platform has driven a significant number of queries regarding STIs, birth control and mental health issues that may not have been discussed during regular office visits.

The use of the platform has grown significantly since it was introduced last spring, although about 18 percent of encounters require a subsequent in-person visit. Patients have included an 89-year-old woman who texted in all capital letters and used the term “over and out” to conclude her encounter. Pediatric consults have also proven extremely popular. Melmed also noted that the anonymity provided by the platform has driven a significant number of queries regarding STIs, birth control and mental health issues that may not have been discussed during regular office visits.

But as Richman observed, making access to medical care almost instantaneous posits new legal risks. While the legal standard of care that is being delivered has not changed, the swiftness that an encounter occurs means providers need to be more capable of thinking on their feet (or smartphone).

“Historically, the patient would spend more time at the doctor’s office and their visit would be extended. But like everything else through email or telecommunications, the delay that was built into life, in general, is no longer there,” Richman said. “This impact on immediateness will increase and put pressure on providers.”

While Richman observed that litigation surrounding healthcare services being delivered through electronic means remains rare, that may change as utilization of e-health services rises.

“If there is anything the physician is able to detect through these technologies, it may be an issue that needs to be dealt with on a more personal basis,” Richman said. “It may be incumbent at times for the physician to order the patient to come in for an exam.”

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